The Digital Millennium Copyright Act Needs Revision

The creation and expansion of the digital world has made copyright reform more important than ever, and Congress is finally getting around to it. Lawmakers have commissioned a whole slate of studies into how to fix what has become an outdated and largely dysfunctional system of attributing credit and ownership where it’s due in a world brimming with new ideas, tangible and intangible.

At the epicenter of the legal dilemmas surrounding copyright procedure in the virtual realm is the Digital Millennium Copyright Act. The DMCA was drafted and approved in 1998. It aimed to act as an anti-privacy statute by making it illegal to circumvent copy protections that were created to stop people from duplicating digital copyrighted works and then distributing them for money or as gifts. The act also made it illegal to manufacture or distribute tools or techniques for circumventing copy controls.

As the internet grew to become a cultural phenomenon that no one could truly predict, the DMCA ended up having broader effects than anticipated. Its wording allowed for game developers, music and film companies, and other media providers to maintain strict policies regarding how consumers could access and use their copyrighted works. The DMCA made it impossible in some cases for consumers to make copies of the products they purchased, even for their own use. In other cases, device owners found that they couldn’t jailbreak their smartphones and other devices in order to use them in ways that were inopportune for manufacturers, even if the owners’ alternate way of using their smartphones didn’t necessary involve stealing any new information.

The DMCA’s most problematic sections included section 1201, which defines illegal procedures that pertain to the circumvention of copy-protections, and section 512, which allows a copyright holder to send a so-called takedown notice to web sites and others believed to being infringing on copyright law. Unfortunately, both of these sections have become commonly abused by companies for purposes unrelated to copyright protection.

For example, companies have repeatedly used the DMCA to try to limit their competition. Lexmark, the maker of laser printers, tried to prevent third-party companies from selling their toner cartridges by using an authentication process that would make it impossible for a Lexmark printer to work with a third-party cartridge. When a third-party cartridge selling company called Static Control Components figured out how to make cartridges that made it through the verification process, Lexmark attempted to sue the company using the DMCA as proof of copyright violation. Apple has also used the DMCA to strong arm websites demonstrating how to jailbreak iPhones into removing the information. While in both cases the companies were ultimately thwarted, a study released earlier this year by researchers at UC Berkeley and Columbia University found that one in every three DMCA takedown notices is actually built on fairly shaky legal ground.

This has led many critics and civil liberties groups to call for the law’s reform, or at least for it to clarify its scope. Not only have bogus takedown notices abounded since the DMCA was passed, but the law has also been used as an anti-hacking law to prop up lawsuits regarding unauthorized computer access. Even auto manufacturers have used the DMCA in order to force vehicle owners to only visit authorized dealers for service and repairs. The DMCA has even been cited as one of the major laws that enabled Volkswagen to go so long without being caught cheating on its emissions tests. The researchers who ultimately caught the German automaker would have faced potential DMCA violations for looking through the vehicle’s code had the study not been government-authorized. without the DMCA, Volkswagen may have been caught much earlier.

Because the DMCA continues to hamper researchers from conducting legitimate and helpful studies, it’s imperative that US legislature adjust the law to better reflect what’s best for the American people.